Court rejects lawsuit, but warns of implicit bias

July 18, 2014 09:58 AM

July 18, 2014 09:58 AM

IOWA CITY, Iowa (AP) — The Iowa Supreme Court rejected a class-action lawsuit Friday that alleged the Iowa executive branch discriminated against black job applicants, even while finding that African-Americans face subtle biases that make it harder to land employment.

In agreeing with a lower court decision to dismiss the case, the justices said the class of 5,000 black employees and job applicants failed to prove they suffered systemic discrimination because they did not show that specific hiring practices disadvantaged them.

But all seven recognized the impact of implicit bias, in which individuals subconsciously favor whites over blacks. Meanwhile, three justices said they were concerned that blacks may have been disadvantaged by subjective resume-screening processes that left them less likely to be granted interviews at some agencies.

The plaintiffs argued that state managers had allowed biases to creep into decisions on which candidates to interview and hire. Their case was based on statistics that suggest blacks received fewer interviews and jobs than whites at state agencies such as the Department of Transportation and a growing body of social science research affirming the concept of implicit bias.

District Judge Robert Blink initially dismissed the case in 2012 after a lengthy trial. Plaintiffs appealed to the high court, but all seven justices agreed Blink's decision should stand.

The plaintiffs' lawyer, Tom Newkirk, argued on appeal that the state's record-keeping involving decisions related to 20,000 job openings was incomplete and didn't allow him to challenge specific practices. He noted data, including some from state consultants and experts, suggested that blacks were generally disadvantaged and argued that should support a claim against the entire system.

But Justice Brent Appel said there was substantial evidence to support Blink's conclusion that the records could've been studied to pinpoint problems with specific screening and hiring practices, which varied by agency.

The ruling is expected to end a seven-year lawsuit in which the plaintiffs were seeking millions of dollars in lost wages and changes to state hiring practices to better track and eliminate racial disparities. Iowa is 91 percent white.

Solicitor General Jeff Thompson, who defended the state, said he was relieved by the outcome. But he emphasized that he was working with agencies to improve how applicants are screened so that decisions are based on specific criteria that can be tracked.

"Win or lose, we have been working with our client agencies to make improvements in the hiring process," he said.

Appel, whose opinion was endorsed by three other justices, said that overt racism has been replaced by unconscious discrimination as the "headwinds faced by African Americans in the employment marketplace." He said the case had to be dismissed under existing state and federal law, but suggested the plaintiffs could have pursued a negligence claim to hold the state responsible for failing to address the discriminatory impact.

Justice Thomas Waterman wrote a separate opinion joined by two others agreeing the lawsuit should be dismissed, even though "there undoubtedly was subjectivity and — as the plaintiffs credibly demonstrated — implicit bias in multiple state hiring decisions."

Newkirk said he knew the appeal faced long odds, but the ruling was "tremendously positive" by paving the way for future lawsuits to hold employers responsible for discriminatory practices.

"The recognition of implicit bias is huge," he said. "It's disappointing that the state may escape on what is effectively a technicality. (But) our ultimate goal was to gain increased understanding within the court system for a realistic assessment of how race interferes with equality in the modern world. And we did that."

Waterman said a friend-of-the-court brief filed by NAACP raised "serious questions as to whether the state committed unlawful discrimination." The brief noted that state expert Robert Miller found an "adverse impact" against blacks who applied at eight large agencies, in a step that involves scoring resumes to select interviewees. But he said plaintiffs didn't pursue whether "inappropriate screening devices" were used.

"I do not downplay what this case has shown," he wrote. "Even according to Miller, it appears African Americans on the whole were disadvantaged in getting job interviews from some agencies, including some large departments like the Department of Human Services and the Department of Transportation. This conclusion ... is disturbing although inconclusive."